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Try Sept. 11 suspects in the U.S. District Court for Guantanamo

By Eugene R. Sullivan and Louis J. Freeh
Friday, July 16, 2010; A17

Having committed -- correctly, in our view -- to hold the trial of the principal defendants charged with carrying out the Sept. 11, 2001, attacks before an Article III federal court, the White House and Congress appear stymied about which American venue these accused mass murderers should be taken to for trial. Clearly, holding these trials in Manhattan or Illinois is no longer an option for a host of political and practical reasons. Countervailing arguments that the defendants should go before military commissions at Guantanamo Bay, Cuba, have led to a stalemate.

But there is a safe, rational, cost-effective solution that upholds the rule of law: Try the suspects in an Article III federal court -- in Guantanamo.

The territory of every federal district court is defined by statute. Thus Congress can, by statute, expand the "territorial jurisdiction" of any federal district court -- for example, the U.S. District Court for the Southern District of New York, the venue initially designated for the Sept. 11 trial -- to include Guantanamo. Or Congress could create a Guantanamo Bay Cuba Division for any federal district. Either way, the result would be an economical, secure, credible and fair determination before a civilian federal judge and jury. Detainees would have the right to file habeas corpus petitions, which would speed the much-needed closing of the Guantanamo Bay detention facility by adjudicating the remaining cases safely, judiciously and quickly.

Three core principles argue for this solution.

First, our national honor as a country committed to the rule of law weighs heavily in favor of trying these accused terrorists in civilian federal courts. Our Article III judges, juries, prosecutors, independent defense counsel, due process and precedents make the federal courts the only credible and constitutionally sound place to bring these cases. Hundreds of international terrorist suspects have been brought to trial in our courts, with results accepted and respected worldwide. Conversely, the untested and widely questioned military commissions have prosecuted only four detainees since Sept. 11; two received light sentences and are now free. Even some of the commissions' principals have questioned the constitutionality of their processes and outcomes. Ultimately, despite the laudable dedication of their participants, the commissions are fatally flawed: The public, at home and abroad, lacks confidence in their independence and fairness.

Second, trying these alleged terrorists as quasi-"military prisoners" before military commissions, rather than as "common" (albeit notorious) criminals, lends credence to their claims to be "warriors." Not only should we not award them any semblance of warrior status, including military trials, that they can twist for propaganda or ideological reasons, but doing so is also a grave insult to the millions of Americans who have gone into harm's way, thousands of whom have given their lives, to combat terrorism with honor. It also greatly disrespects the hundreds of thousands of innocent victims worldwide -- mostly women, children and other noncombatants -- of these cowardly and indiscriminate killers.

Third, the economic costs of ensuring adequate security within the United States are prohibitive. Without spending millions of taxpayer dollars, no persuasive argument can be made that trying these defendants anywhere within the states would be as safe and secure as using the multimillion-dollar facilities constructed at Guantanamo Bay for this purpose.

There is precedent for this approach. Other "island" military bases, indisputably treated as U.S. territories or possessions -- the Midway Atoll, Wake Island, Johnston Island, Kingman Reef -- are expressly defined within the jurisdiction of specific district courts, even if they are retained largely for military use. This would place Guantanamo within the territorial jurisdiction of a federal court, if not within the sovereign territory of the United States. The two political branches of government could exercise their discretion and have the case tried credibly before an Article III court and jury in the safest, most cost-efficient and available venue of all.

This solution has the immense benefit of employing the considerable talent and resources of two proven federal courts -- the Southern District of New York and the U.S. Court of Appeals for the 2nd Circuit -- with all the attendant prosecutorial, defense attorney and administrative expertise to ensure a credible conclusion. While it would require some logistical innovations, such as impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service, federal courts have adapted to these kinds of challenges in complex terrorism cases.

Federal trials at Guantanamo would enable that justice is carried out in a safe, fair, credible and cost-efficient way. Congress and the president should act to do so.

Eugene R. Sullivan was chief judge for the U.S. Court of Appeals for the Armed Forces from 1990 to 1995. Louis J. Freeh is a former U.S. District Court judge for the Southern District of New York and was FBI director from 1993 to 2001.

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